Teasing Info Out of the AWA Regulations

Having gotten up to my ears in AWA Regulations regarding the Piper travesty, I decided I might as well continue to see if I could understand the regulations as it pertains to canine hobby breeders. If you sell birds or fish or snakes, I have no clue what to tell you. You are on your own. This was tough enough to understand for one small group.

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To begin with, there are two major categories, Dealer and Not a Dealer. As you will see both rescues and hobby breeders are considered dealers.

Yes, occasionally hobby breeders sell show and breeding prospect pups, but my best guess on the AWA regulations is that unless you are selling ALL or at least MOST of your dogs for breeding purposes, you can’t get out of the “Dealer” definition.

If you are a breeder that sells mostly GSDs for security or Pointers for hunting, or for reasons other than as a pet, you probably will be able to get away with considering yourself not a dealer but I urge you to dig deeper as there is some conflict as to where those areas lie with AWA. I would definitely think you are a ticking time bomb if you market or have buyers that are mostly looking for companion dogs.

I used direct quotes from the regs and comments and law, so if my interpretation is wacky, you may be able to pick up on it and let me know.

The text in Bold to help pick out the important phrases was mine.

Dealer

“Any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, sells, or negotiates the purchase or sale of: Any dog or other animal whether alive or dead (including unborn animals, organs, limbs, blood, serum, or other parts) for research, teaching, testing, experimentation, exhibition, or for use as a pet... “

“We consider private rescues and shelters that perform any of the activities listed in the definition of dealer, including transporting or offering animals for compensation, to be dealers. We consider acts of compensation to include any remuneration for the animal, regardless of whether it is for profit or not for profit. Remuneration thus includes, but is not limited to, sales, adoption fees, and donations.”

“If the dogs intended to be sold as pets at a multi-use retail facility are commingled with dogs intended to be sold for purposes other than one of the six in the definition of dealer, all parts of the multi-use facility would be subject to regulation.”

“dealers are only required to be licensed if they do not meet any of the exemptions in the regulations.”

“We will identify newly regulated entities using our current methods, which include reviewing marketing or promotional material in the public domain, self-identification, and complaints. Implementation of this rule will take into consideration the workforce hours that it will take to add newly regulated entities to our database.”

“A commenter requested that we investigate unlicensed “puppy brokers” who transport and sell puppies for commercial breeders who raise puppies in rural, remote areas. The commenter stated that such brokers are transporting puppies to more populated areas so that they can be sold out of private homes, for which the residents receive a percentage of the profit.

“APHIS does not require exempted breeders to report such information cited by the commenters. However, we are authorized to inspect the records of licensed entities.”

Plain English Translation:

Any person or entity that sells a dog at retail for one of the 6 following reasons(and ONLY these 6 reasons) is a dealer:

Research

Teaching

Testing

Experimentation

Exhibition

As a pet

If you are in this category, the AWA Regulations DO apply to you.

Not A Dealer

“…individual is selling animals at retail for breeding purposes, that individual is not a dealer."

“Individual person sells other than wild or exotic animal, dog, or cat and who derives no more than $500 gross income from the sales during any calendar year.”

Retail Outlet: Dogs sold for reasons other than the 6 noted under the definition of dealer. For example, but not limited to: Hunting, breeding or security purposes

“Individuals who intend to breed and sell dogs at retail as working dogs may occasionally raise a dog that lacks the characteristics that would enable it to be sold or used for its intended working purpose. As long as the individual originally intended to raise and sell the dog at retail for that purpose and the individual continues to market his or her dogs for that purpose, the individual could sell that dog at retail and remain exempt.”

“An individual selling dogs at retail solely for hunting purposes is not a dealer.

"One commenter asked how APHIS determines from a seller that a dog sold for hunting, herding, or other work will not also be used as a pet.

In making such a determination, we consider the manner in which the seller markets his or her animals and gather feedback from buyers and State, county, and local authorities.”

“Establishments or persons exhibiting, selling, or offering to exhibit or sell any wild or exotic or other nonpet species of warmblooded animals (except birds), such as skunks, raccoons, nonhuman primates, squirrels, ocelots, foxes, coyotes, etc.;

“Any establishment or person selling warmblooded animals (except birds, and laboratory rats and mice) for research or exhibition purposes; and

Any establishment wholesaling any animals (except birds, rats and mice).”

“Any establishment exhibiting pet animals in a room that is separate from or adjacent to the retail pet store, or in an outside area, or anywhere off the retail pet store premises. “

Plain English Translation:

Any person or entity that sells a dog for ANY PURPOSE other than what is listed under “dealer”. For example, BUT NOT LIMITED TO:

Sells retail for hunting

Sells retail for security

Sells retail for breeding purposes

Sells wholesale

Exhibiting animals in a room separate from a retail store

If you are in this category, the AWA Regulations do not apply to you, you lucky dog!!!

There is some confusion as to how the AWA sees someone selling dogs for hunting, security, or breeding purposes. I have seen those areas listed as both dealer and non-dealer. Since I am not personally involved in those areas, I have no need to probe deeper. For those of you who ARE in that market, more research would be of benefit to you.

APHIS determines the intention of the seller by looking at how the dogs are marketed and gathering information from buyers and local authorities.

In other words, don’t try to fool the Feds if most of your sales are as pets.

If you are NOT A DEALER you can stop reading. You don't have to do anything.

AWA Regulations Regarding Dealers

The category of Dealer is further broken down into two subcategories, Licensed and No License Needed. Thankfully, most of the hobby breeder population should fall into the No License Needed group.

The only reason you would really need to be licensed is if you insisted on shipping puppies to buyers. I have had several prospective puppy buyers ask if I would and I’ve had to turn them down. Not worth worrying if it’s some sort of sting operation or AR fanatic trying to stir up trouble.

No records are required of No License breeders. The only way the Feds could nail you is if someone can show you are shipping dogs.

Licensed Dealer

“Those who own more than four breeding females and wish to continue selling the offspring as pets, sight unseen, can do so by obtaining a license and allowing APHIS inspectors to inspect their facility.”

Plain English Translation:

If you do ALL of the following you must get a license:

Sell any of your pups by phone or internet without the buyer ever seeing the pup

AND ship to the buyer

AND you own more than 4 breeding females

No License Dealer: Exempt

A “Dealer” exempt from licensing is considered a RETAIL PET STORE:

“Many commenters pointed out that local zoning codes often prohibit retail stores in areas designated for residential use, while others stated that State and local tax codes often require retail stores to file differently from “hobby businesses” and asked whether APHIS had considered these implications.

One breeder asked whether, pursuant to Internal Revenue Service Code Section 183, being considered a retail pet store by APHIS would allow him to claim “for profit” status and increase the number of itemized deductions he could claim on his tax form.

We used the term retail pet store only for the specific purpose of defining certain persons who sell pets at retail as retail pet stores, thus exempting them from licensing pursuant to the AWA.”

“… we consider such rescues and shelters to be retail pet stores only for the purposes of our regulations. Whether any other Agency or jurisdiction defines such an organization as a retail pet store for taxation or any other purpose is beyond our purview.”

“We consider residential breeders selling pets at retail to be included under the exemption of “retail pet stores” in the AWA.”

"Retail pet store 'a place of business or residence that each buyer physically enters in order to personally observe the animals available for sale prior to purchase and/or to take custody of the animals after purchase, and where only the following animals are sold or offered for sale, at retail, for use as pets: Dogs, cats, rabbits, guinea pigs, hamsters, gerbils, rats, mice, gophers, chinchillas, domestic ferrets, domestic farm animals, birds, and coldblooded species.' ”

"In the factsheet, we clarified our proposed change to the retail pet store definition by noting that pet animal retailers who sell their animals to customers in face-to-face transactions at a location other than their premises are also subject to some degree of public oversight, and therefore we would not regulate them for that activity”

“Accordingly, if the buyers observed this second pup during their visit, this condition is fulfilled. If they did not (e.g., if the pup was not yet born when the prior transaction took place), this condition is not fulfilled.”

“…important to note that we consider the buyer of a pet animal sold at retail to be the person who takes custody of the animal after purchase, even if this person is not the ultimate owner of the animal.”

“However, a carrier or intermediate handler cannot be designated as the buyer.”

“…restricting the definition of retail pet store to “brick-and-mortar” stores is unnecessary and not in keeping with the intent of the AWA.”

“We are not regulating the use of the Internet (or any other method of sale). Sellers are free to use the Internet to advertise or sell pet animals, provide information to buyers, and conduct other related activities. Indeed, a seller who sells over the Internet could still be considered a retail pet store provided that, before the buyer takes custody of the animals purchased, the seller, buyer, and animals have been physically present in one location so that the buyer may personally observe the animals.”

What I would call MICRO HOBBY BREEDERS are addressed in these portions of the AWA:

“Retailers who, for whatever reason, do not consider it possible for each buyer to personally observe their animals prior to purchasing them and/or taking custody of them may still be exempt from licensing if they do not sell the animals at retail for one of the six purposes covered under the definition of dealer. If they sell the animals at retail for one of those six purposes, but maintain four or fewer breeding females and sell only the offspring born and raised on their premises, they are also exempt from licensing.”

“A breeding female is considered to be maintained at their premises if it resides at that premises, even if temporarily.”

“The exemption refers to the aggregate number of female dogs, cats, and/or small exotic or wild mammals on the premises who are bred and whose offspring are sold as pets.”

“for the purposes of enforcement, APHIS has to assume that a female that is capable of breeding may be bred. However, in determining whether an animal is capable of breeding, an APHIS inspector will take into consideration a variety of factors, including the animal's age, health, and fitness for breeding.”

“We acknowledge that co-ownership of breeding females is a standard practice among small-scale residential breeders. Provided that no more than four breeding females are maintained on his or her premises,these individuals would qualify for the exemption in § 2.1(a)(3)(iii).”

Plain English Translation:

The Term Retail Store in the AWA regulations DOES NOT translate into “Retail” for IRS taxes or local zoning purposes.

In order to be exempt for licensing by AWA regulations as a dealer, the buyer must have eyes on the dog they plan to buy AT SOME POINT IN THE DOG’S LIFE before you get final payment.

ANY location is acceptable for evaluation of the dog or the sale. It doesn’t have to be your home, it could be selling at a Walmart parking lot for all the AWA regulations care.It doesn’t have to be at the time of sale, it could be a pup seen a year or more ago.

If you are exempt, you may have as many intact males, females, dogs, cats, whatever and breed as often as you wish. You may co-own, have visiting bitches in heat for stud services, advertise on the internet, accept deposits online etc. BUSINESS AS USUAL.

IF you want to ship dogs to buyers sight unseen, then there are further restrictions to stay exempt from licensing:

That breeder must:

• Maintain four or fewer breeding females including visiting bitches short term for stud services

• Includes all species of breeding females collectively

• Sell only the offspring born and raised on their premises . Selling puppies from co-owned bitches, sale of puppies back for stud services was an area even the Feds couldn’t give a rock solid answer.

• Co-owned bitches WOULD NOT count as long as they resided at the co-owners premises AT ALL TIMES

So, if you own more than 4 bitches, sell at least some of them as pets and wish to ship dogs sight unseen, you need a license. And if you have a license and breed your dogs in your home you are opening yourself up to inspections and maintaining areas where the dogs live to whatever standards the AWA regulations may state. If you are exempt, the Feds cannot enter your home (or legally shouldn’t, is maybe more accurate).

“A number of commenters stated that any change to the definition of retail pet store that subjects their homes to possible unannounced government inspections for AWA compliance violates their Fourth Amendment rights against unlawful search and seizure.

Section 2146 of the AWA explicitly authorizes inspections of licensees to determine compliance with the AWA. However, such inspections are limited to only those areas that impact the well-being of the animals, such as areas where food and medicine for the animals are stored.”